Immigration Corner |Is my daughter a legal resident?

Dear Mrs Walker-Huntington,

I am seeking your help with my daughter who has been living in the USA for over 10 years.

She went up as a student and got married after college. She is still married but has not done anything to change her immigration status. Her husband has done nothing to assist her in the process, and she is still there. Is her status illegal? What can she do to have her situation changed?

She is looking for help but does not know how to go about it. Your response will be greatly appreciated.

- PT

Dear PT,

Marriage to a US citizen or green-card holder does not automatically give a person any legal status in the United States.

I am assuming that your daughter entered the United States on an F-1 visa as a student. If she married an American citizen, she is eligible to remain in the United States and file to change her status from a student to a permanent resident (green-card holder). She would have to demonstrate to the US Citizenship & Immigration Services that the marriage is valid and that she and her husband have co-mingled their assets and debts.

If she married a green-card holder, she would not be able to adjust status because at this point, she is probably out of status. If she leaves the United States after being out of status for a year or more, she would face a mandatory 10-year bar to returning to the United States - unless she received a waiver.

Her husband would be the petitioner, and he would have to file the necessary documents for her to change her status. However, if she is the victim of domestic violence and her husband is unwilling to file the necessary documents, she may be able to self-petition under the Violence Against Women's Act and would not need her husband to cooperate. Domestic violence is not always physical violence and can be psychological and/or emotional. In some instances, the US citizen spouse does not want to file the necessary documentation to make their immigrant spouses legal residents because they want to maintain control over the spouse as an undocumented immigrant.

Your daughter should contact an immigration lawyer to go over her specific situation and see if she qualifies to self-petition.

- Dahlia A. Walker-Huntington, esq is a Jamaican-American attorney who practises immigration law in the United States and family, criminal and international law in Florida. She is a mediator and special magistrate in Broward County, Florida. info